Citation NR: 9741559 Decision Date: 12/16/97 Archive Date: 12/19/97 DOCKET NO. 96-33 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the veteran is entitled to interest on the payment of retroactive Department of Veterans Affairs disability compensation pursuant to a grant of benefits based on clear and unmistakable error in a May 1961 rating decision. REPRESENTATION Appellant represented by: Blinded Veterans Association WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from May 1950 to May 1954 and from November 1955 to August 1957. This appeal arises from an April 1994 letter from the Department of Veterans Affairs (VA) Regional Office, Muskogee, Oklahoma, in which it was stated that Department of Veterans Affairs (VA) regulations do not provide for interest to be paid on retroactive awards. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he should receive interest on his back pay award as the back pay covered a period dating back to 1961. He asserts that, as the award was based upon a finding of clear and unmistakable error, for the corrected decision under 38 C.F.R. § 3.105(a) (1997) to be treated as if it had been made on the date of the reversed decision, interest needs to be paid on the funds which had been unpaid for many years. He further asserts that several court decisions, including Loeffler v. Frank, 486 U.S. 549, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); National Home for Disabled Volunteer Soldiers v. Parrish, 229 U.S. 494, 33 S.Ct. 944, 57 L.Ed. 1296 (1913) and Vail et. al. v. Brown, 841 F.Supp. 909 (1994), as well as a Federal statute, demonstrate that government agencies can and should be required to pay interest. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appeal is dismissed. FINDING OF FACT The veteran alleges that he is entitled to interest on the payment of retroactive VA disability compensation pursuant to a grant of benefits based on clear and unmistakable error in a May 1961 rating decision. CONCLUSION OF LAW The matter of the claim of interest on the payment of retroactive VA disability compensation pursuant to a grant of benefits based on clear and unmistakable error does not involve a question of fact or law related to the provision of benefits within the meaning of the 38 U.S.C.A. § 511. 38 U.S.C.A. §§ 511, 7104 (West 1991 & Supp. 1997); 38 C.F.R. § 20.101 (1997). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran has contended that he should receive interest on his back pay award as the back pay covered a period dating back to 1961. The Board has jurisdiction to decide questions of law and fact necessary to decisions under a law that affects the provision of benefits by the VA to veterans or the dependents or survivors of veterans. 38 U.S.C.A. §§ 511, 7104. While questions such as a veteran's basic eligibility for VA benefits, his entitlement to VA disability compensation or whether there had been clear and unmistakable error in a rating decision are within the Board’s jurisdiction, these are not the benefits being sought by the veteran. The record shows that, in April 1993, the VA confirmed that there had been clear and unmistakable error in a May 1961 rating decision and concluded that the veteran should be granted a 100 percent disability evaluation for chorio- retinal degeneration as well as special monthly compensation for blindness in both eyes with visual acuity of 50/200 or less, effective from February 2, 1961, as well as special monthly compensation for blindness in both eyes having light perception only, effective from November 8, 1991. The record also shows that, following verification of the veteran's military retired pay, he was awarded $203,497.31 in VA disability compensation covering the period from February 2, 1961, to July 31, 1993. The veteran does not disagree with the amount of the VA disability compensation paid as the result of the decision which determined that there had been clear and unmistakable error in the May 1961 rating decision, his current appeal is on the issue of whether interest on that award should be paid as well. 38 U.S.C.A. § 1110 authorizes the VA Secretary to make payments of disability compensation. However, there is no statute authorizing the Secretary to make payments of interest on any award of VA disability compensation. The veteran correctly asserts that, under certain circumstances, such as where authorized by statute, interest has been paid by certain government agencies. However, the statute cited by the veteran is limited to the Internal Revenue Service and in each of the cited court cases the commercial activity exemption, allowing for the payment of interest where the government “cast off the cloak of sovereignty and assumed the status of a private commercial enterprise” was applied. See Vail, at 915. However, as here, where the commercial activity exemption is not for application and, absent Constitutional requirements, an allowance for the payment of interest on a claim against the United States requires an explicit waiver of sovereign immunity by Congress. Fidelity Construction Co. v. United States, 700 F.2d 1379, 1783 (Fed Cir. 1983). Absent a statute authorizing the payment of interest by the VA Secretary on awards of disability compensation, no law or regulation affecting the provision of benefits by the VA to veterans or the dependents or survivors of veterans administered by the VA is for consideration. The merits of the veteran's claim can not be addressed by the Board as we are without jurisdiction. As there is not an issue appropriate for appellate review by this Board, the appeal must be dismissed. 38 U.S.C.A. §§ 511, 7104; 38 C.F.R. § 20.101. ORDER In the absence of an issue appropriate for appellate review, the appeal is dismissed. HILARY L. GOODMAN Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -